Petition — Scripps-Howard Broadcasting Co. v. Embers Supper Club, Inc.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

Scripps-HOWARD BROADCASTING COMFANY,

Petitioner,

. v.

EMBERS SUPPER CLUB, INC.,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF OHIO

Bruce W. SANFORD

Counsel of Record

LEE LEVINE

BRIAN S. HARVEY

BAKER & HOSTETLER

818 Connecticut Ave., N.W.

Washington, D.C. 20006

(202) 861-1500

Counsel for Petitioner

PRESS OF BYRON 8S. ADAMS PRINTING, INC., WASHINGTON, D.C. (202) 347-8203

i

QUESTION PRESENTED FOR REVIEW

Whether the Constitution requires thet the plaintiff in a

defamation action establish each element of a prima facie case

of defamation in order to surmount a defendant’s motion for

directed verdict at the close of the plaintiff's case-in-chief.*

*The majority of the shares of petitioner Scripps-Howard Broadcasting

Company is owned by the E. W. Scripps Company, a privately held corpora-

tion. Scripps-Howard Broadcasting Company has an approximate 50-

percent participation in four partnerships, Cablevision of Connecticut, Ann

Arbor Cabievision, Cablevision Systems of Southern Connecticut, and

Cablevision of Sacramento.

iz

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ..............005- i

JURMMDOCTION .. oo .cccccceesenhesnn eeeaneeeieraele 1

CONSTITUTIONAL PROVISIONS INVOLVED .............-- 2

STATEMENT OF THB GARE. ccnnaccchsuieeabisnabawess 2

A. Preliminary Siaheml oo. iccccudescicebecvess 2

B. Procedural TRG .csces ccceveueseeiserceseae 3

C. How Federal Question Is Presented ............ 7

D. Statement, OF PRM éocccaceapehwebessketcerens {

REASONS FOR GRANTING THE WRIT ............--00005 13

The Ohio Supreme Court’s Decision Unconstitution-

ally Fails To Require The Plaintiff To Prove A Pri-

ma Facie Case Of Defamation. ................. 13

1. ToSurvive A Motion For Directed Verdict, The

Plaintiff Must Demonstrate, Prima Facie,

That The Statement Complained Of Is

Defamatory Of The Plaintiff. .............. 14

2. ToSurvive A Motion For Directed Verdict, The

Plaintiff Must Demonstrate, Prima Facie,

Not Substantially True. .............e0s05: 17

3. ToSurvive A Motion For Directed Verdict, The

Plaintiff Must Demonstrate, Prima Facie,

That It Suffered Actual Injury To ge

As A Proximate Result Of The Allegedly

Defamatory Statement. ................... 20

4. ToSurvive A Motion For Directed Verdict, The

Plaintiff Must Demonstrate, Prima Facie,

That The Defendant Was At Fault In Publish-

ing The Allegedly Defamatory Statement. .. 22

COMCEUGION occccccicccanccuabucebulesseee eee 24

APPEMBOCES 2 oc cccccccscuccuseteuneneesuss ee la

TABLE OF AUTHORITIES

CASES: Page

Barger v. Pla Enterprises, Inc., 564 F. Supp. 1151

» 2 Vn ge * speptapedemeedbentalitets ca tees

Beck v. Ohio, 379 U.S. 89 (1964) ......... 0. cece eee. 5

Calder v. Jones, 52 U.S.L.W. 4349 (U.S. Mar. 20, 1984)

8, REE RES IES ee Ra eo

ae SS rere 5

Cooper v. Miami Herald Publishing Co., 159 Fla. 296, 31

EE CaM vedewest sobesTékandsy na

Edgartown Police Patrolmen’s Association v. Johnson,

522 F. Supp. 1149 (D. Mass. 1981) ..............

Edwards v. South Carolina, 372 U.S. 229 (1963) ..... 14

eee eee eee ;

—— Amusement Co. v. Metromedia, Inc., 413 F.

ee Ber eerrT erie rey 16

Gertz v. Robert We!ch, Inc., 418 U.S. 323

EE So au un ecewevnesspewend based fans 13, passim

Golden North Airways, Inc. v. Tanana Publishing Co.,

218 F.2d G12 (Oth Cir. 1964) .........ccccscvcess

Gwinn v. Washington Post Co., 211 F.2d 641 (D.C. Cir.

CEN 6 din't an CV cca caduawssbbicdadhice

Hqmilton’s Clubhouse, Inc. v. United Press Internation-

al, Inc., 9 Media L. Rep. (BNA) 2453 (D. Iowa 1983) 16

Hatjioannou v. Tribune Co., 8 Media L. Rep. (BNA) 2637

Se, ES ab cand 00004 detcd ecanatackdeess

SO ns acoso eeehs end be TRMEO SESS cas Res Koen 16

Li ld v. Fort Dodge Messenger, 614 F.2d 581 (8th

ir.), cert. denied, 445 US. 945 (1980)

DP sackespepepecdecdewesiehbocade dienes 16

New York Times Co. v. Sullivan, 376 U.S. 254

SE Ga kccveccdcicchssredteanntdn venue 14, passim

iv

Table of Authorities Continued

Ratner v. Young, 465 F. Supp. 386 (D.V.I. 1979) .... 15

Richwine v. Pittsburgh Courier Publishing Co., 186 Pa.

Super. 644, 142 A.2d 416 (1958) ................

6

Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971) . 5

Schnabel v. Meredith, 378 Pa. 609, 107 A.2d 860 (1954) 16

Seegmiller v. KSL, Inc., 626 P.2d 968 (Utah 1981) ... 24

Torski v. Mansfield Journal Co., 100 Ohio App. 538, 137

EME GAs 0b 006 veeweewes Findedendes

OTHER AUTHORITIES:

Ohio R. Civ. P. 5O(AX4), SECC)... ccc cece eee 4, 18

en I OD ick a voce aeeceeseconwal 5

W. Prosser, Handbook of the Law of Torts (4thed. 1971) 22

Restatement (Second) of Torts (1977) .............. 15, 24

a BE oS nk ow ck Wade 6 obese wide esucee sb 3, 25

C. bet x & A. Miller, Federal Practice and Procedure -

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1983

| ee

Scripps-HOWARD BROADCASTING COMPANY,

Petitioner,

=

EMBERS SUPPER CLUB, INC.,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF OHIO

Petitioner, Scripps-Howard Broadcasting Company,

respectfully prays that a writ of certiorari issue to review the

judgment and opinion of the Supreme Court of Ohio entered in

this proceeding on January 11, 1984.

OPINIONS BELOW

The ruling of the Court of Common Fleas for Hamilton

County, Ohio is unpublished and is included in the Appendix

hereto. The opinion of the Court of Appeals for Hamilton

County, Ohio is unpublished and is included in the Appendix

hereto. The opinion of the Ohio Supreme Court is published at 9

Ohio St. 3d 22 and at 457 N.E.2d 1164 and is included in the

Appendix hereto.

JURISDICTION

The judgment of the Ohio Supreme Court, reversing the

directed verdict for petitioner and remanding for trial, was

entered on January 11, 1984. This petition for certiorari is filed

2

within 90 days of that date. This Court’s jurisdiction is invoked

under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

1. First Amendment, United States Constitution:

Congress shall make no law. . . abridging the freedom of

speech, or of the press... .

2. Fourteenth Amendment, Section 1, United States Con-

stitution:

(Nor shall _ state deprive any person of life, liberty, or

property, without due process of law... .

STATEMENT OF THE CASE

A. Preliminary Statement

In July 1972, petitioner Scripps- Howard Broadcasting Com-

pany, d/b/a Station WCPO-TV (“the Station”), broadcast two

news reports stating that police had raided a local lounge and

seized gambling paraphernalia, including betting slips and rac-

ing forms. Despite nine years of pretrial litigation and a full

opportunity to present evidence at trial, there has been no

showing that these news reports are false or defamatory of any

person or entity, including the plaintiff in this action—Embers

Supper Club, Inc. (“Embers”). Nor has Embers made any

showing that the Station’s news reports were prepared

negligently or that Embers suffered any injury as a result of

their broadcast. Accordingly, after Embers rested at trial, the

court granted a directed verdict for the Station, which was

unanimously affirmed on intermediate appeal.

Four of the seven justices of the Ohio Supreme Court, how-

ever, chose to ignore these fundamental evidentiary failures

and reversed the grant of a directed verdict to the Station. In

the majority’s haste to create a syllabus for defamation actions

brought by private individuals in Ohio, it concocted a case that

does not exist. Because the resulting decision rests upon a

misapplication of elementary principles of the constitutional

law of defamation, the Station prays that its petition for cer-

3

tiorari be granted. Indeed, the Ohio Supreme Court’s cavalier

disregard for the trial record, and for the dispositive grounds

upon which both lower courts had premised their rulings,

warrants summary reversal of the decision below, pursuant to

S. Ct. R. 23.1.'

B. Procedural History

On July 21, 1972, police raided a lounge owned and operated

by Embers and seized gambling paraphernalia. Record, Em-

bers Supper Club, Inc. v. Scripps-Howard Broadcasting Co.,

No. 83-102, at 594 (Ohio Jan. 11, 1984) [hereinafter cited as R. ].

On August 17, 1972, Embers, the sole plaintiff, filed this

defamation action against the Station in the Court of Common

Pleas for Hamilton County, Ohio, based on the Station’s news

reports about the raid. On October 10, 1979, the trial court

denied the Station’s third and final motion for summary judg-

ment. Appendix to Petition for Certiorari at 26a [hereinafter

cited as App.]. The court ruled: “there are disputed issues of

fact concerning the issues of negligence and of damages which

cannot be resolved on a motion for sunimary judgment.” App.

27a.

On June 15, 1981, the case came on for trial before a jury.

After four days of evidence, Embers rested. R. 575. The Sta-

tion moved to strike Embers’ evidence as to damages on the

ground that it was too speculative. App. 20a. The trial court

granted the motion. App. 22a. The Station then moved for a

directed verdict on the grounds, inter alia, that:

(a) Embers had failed to demonstrate that the news

reports at issue are defamatory of Embers;

(b) Embers had failed to demonstrate that the news

reports are false;

' Simultaneously with the filing of this petition, the Station is requesting

the clerk of the court possessed of the Record to certify the Record and

provide for its transmission to this Court, pursuant to S. Ct. R. 19.1.

4

(c) Embers had failed to demonstrate that the Station

was negligent or otherwise at faux in broadcasting the

reports; and

(d) Embers had failed to demonstrate that it suffered

any actual injury as a proximate result of their broadcast.

App. 23a. The trial court granted the motion for directed

verdict, on the ground that Embers had failed to establish “the

requisite elements” of defamation, including damages. App.

16a.*

Embers appealed to the Court of Appeals for Hamilton

County, Ohio. A unanimous panel of the court of appeais

affirmed, ruling that Embers had failed to establish “a prima

facie case of actionable defamation.” App. lla. The court of

appeals held that the news reports at issue are “substantially

accurate” and that they were published “without fault” of any

kind by the Station. App. 13a, 15a. The court of appeals applied

a standard of “due care” and concluded: “({TJhe actual testi-

mony received at trial substantiated the truth of the pubiica-

tion, so. . . it is not easy to determine how additional efforts at

verification (even if such be deemed a requirement of due care)

would have altered the tenor of the publication.” App. 15a."

2 In granting the directed verdict, the trial court applied Ohio R. Civ. P.

50(A)(4), which states:

When a motion for directed verdict has been properly made, and the

trial court, after construing the evidence most strongly in favor of the

party against whom the motion is directed, finds that upon any

determinative issue reasonable minds could come to but one conclusion

upon the evidence submitted and that conclusior. is adverse to such

party, the court shall sustain the motion and direct a verdict for the

moving party as to that issue.

The trial court afforded the Station no special procedural protections

emanating from the First Amendment, but rather determined on traditional

bases that Embers, as piaintiff, had failed to establish a prima facie case of

defamation. See Calder v. Jones, 52 U.S. L.W. 4349(U.S. Mar. 20, 1984) (No.

82-1401).

’The court of appeals declined to address the Station's contention that

since it had merely reported unlawful activity at Embers’ place of business,

without stating that Embers, its employees or principals encouraged, ac-

0

In a 4-3 decision, the Ohio Supreme Court reversed the

directed verdict, based on its finding that Embers is not a

“public figure” and need not demonstrate “actual malice” in

order to recover. App. 3a.‘ In so doirg, the majority dis-

ingenuously sidestepped the uncomfortable reality that neith-

quiesced in, or even knew of the unlawful activity, the news reports at issue

are not defamatory of Embers. App. 13a. The court of appeals also ruled that

the news reports are privileged under Ohio law. /d.

* Ohio law is fashioned by the syllabus of an Ohio Supreme Court decision.

Beck v. Ohio, 379 U.S. 89, 93 n.2 (1964); Cassidy v. Glossip, 12 Ohio St. 2d 17,

231 N.E.2d 64 (1967). The syllabus in this case establishes a rule of law,

already widely adopted in other jurisdictions, that “[i)n cases involving

defamation of private persons, where a prima facie showing of defamation is

made by the plaintiff, the question which a jury must determine by a prepon-

derance of evidence is whether the defendant acted reasonably in attempting

to discover the truth or falsity or defamatory character of the publication.”

App. la.

The Ohio Supreme Court’s decision disingenuously implies that the lower

courts had applied the “actual malice” standard articulated in Rosenbloom v.

Metromedia, Inc., 403 U.S. 29 (1971). There is, however, no question that

the trial court and court of appeals expressly declined to apply the “actual

malice” standard. Indeed, the trial court denied the Station's sumunary

judgment motions on the precise ground that factual disputes existed on the

“negligence” issue. App. 27a.

Further, the Ohio Supreme Court majority completely ignores the principal

grounds raised by the Station in that court for affirmance—that news reports

of wrongdoing at a place of business are not defamatory of the owner of the

business absent a charge that the owner participated or acquiesced in the

wrongful conduct; that the news reports at issue are substantially true; that

there had been no showing that the Station was in any sense at fault; and that

Embers had failed to prove that it had sustained “actual injury” as a result of

the news reports.

The Ohio Supreme Court's haste to disregard the facts of the instant case so

that it could be used as a vehicle to announce its adoption of the negligence

standard is revealed starkly by the fact that it accepted the case for review

even though Embers’ notice of appeal was filed 31 days too late to secure

review of the court of appeals decision, under the Ohio Supreme Court’s own

rules. See Whio S. Ct. R. I, § (A). Although the Station flied a motion to

dismiss the petition for review in the Ohio Supreme Court on this ground and

raised the issue in its brief in that court, the Ohio Supreme Court majority

utterly ignored this issue in its opinion as well.

6

er the trial court nor the court of appeals had held that Embers

is a public figure. Indeed, both courts had held that the case

was to be adjudicated under a negligence standard. App. 15a,

27a.

To reach its decision, the Ohio Supreme Court wholly

ignored the actual bases for the directed verdict that had been

granted below. Faced with a record that makes unmistakably

clear that both lower courts had already treated Embers as a

private figure and had correctly applied a negligence scandard,

the court simply discarded the trial record and assumed the

existence of a defamatory falsehood for which there is neither

plausibility nor evidentiary support. Similarly, the majority

failed to address the absence of any suggestion in either news

report at issue that Embers, or any other identified person or

entity, had engaged in or had even known of any misconduct.

Instead, the majority disregarded entirely the uncontroverted

evidence adduced in Embers’ case-in-chief that both news re-

ports are substantially true and, in fact, presumed their falsi-

ty. The majority further overlooked the absence in the record

of any evidence that Embers had suffered actual injury as a

result of the news reports at issue, or that the Station had been

at fault in any sense. In short, the Ohio Supreme Court found

error where there had been none, simply to fashion a rule oflaw

for Ohio that had already been applied correctly by both lower

courts.

Joining in an opinion by Justice Holmes, three of the seven

justices dissented “for a number of reasons.” App. 6a. The

dissenters concluded that the news reports at issue are >t

“defamatory as to this plaintiff,” since “a report . . . of illegal

activity at a place of business is not a libel against the owner of

the business, unless the owner itself is charged with initiating,

encouraging or acquiescing in the misconduct.” App. 6a-7a. In

addition, the three dissenters declared that the news reports

at issue are “basically true,” and that “if the evidence does not

substantiate the falseness of the publication, the plaintiff can-

not prevail.” App. 7a. Finally, the dissenters found a complete

“absence in the record of anything from which reasonable

7

minds could have concluded fault on the part of the defendant”

under a negligence standard. App. 8a.

C. How Federa! Question Is Presented

The federal constitutional requirement that a defamation

plaintiff must establish a prima facie case in order to surmount

a motion for directed verdict was presented to the trial court

upon the Station’s making of such motion. App. 26a. In urging

affirmance of the trial court’s grant of the motion, the Station

continued to advance this federal constitutional requirement in

the court of appeals and in the Ohio Supreme Court.

D. Statement Of Facts

Embers, an Ohio corporation, is the sole plaintiff in this

action. At the time of the broadcasts at issue in July 1972,

Embers owned and operated a cocktail lounge and, purported-

ly, a restaurant at a shopping center in Springdale, Ohio. R.

244. The so-called “lounge,” which had been doing business

since 1968 as the Embers Supper Club (“Club”),’ had only

recently begun to serve food. R. 502-06. Receipts from food

sales were meager at best.*

At the four-day trial, Embers called only four witnesses:

James F. Lumanick (“Lumanick”), who wrote the script of the

first of the two news reports at issue, R. 36-99; Albert J.

Schottelkotte (“Schottelkotte”), the Station’s news anchorman

5 For purposes of this petition, “Embers” refers to the plaintiff corporation

“Embers Supper Club, Inc.”; “Club” refers to the lounge and restaurant

owned and operated by the corporation at the time of the news reports at

issue

* OnJuly 1, 1972, for instance, the Club grossed $6.25 in food sales. R. 503.

On July 6, 1972, the Club grossed 95 cents from food sales. R. 504. Numerous

other days saw exceedingly thin food sales: July 10, $14.51; July 14, $18.35;

July 18, $1.10; July 20, the day prior to the police raid, $7.35. R. 504-05.

Overall, food sales at the Club were insignificant, averaging less than 822.57

per business day. R. 506. Liquor sales averaged an unimpressive $168.49

daily during this period. R. 507.

8

and director of news and special events, R. 100-33; Jon

Hughes, an assistant professor of English at the University of

Cincinnati, R. 134-241; and Danie! S. Comer (“Comer”), Em-

bers’ sole shareholder, R. 241-557. Embers also introduced in

evidence official police records concerning the raid. R. 587,

592-94. The facts presented by Embers at trial may be summa-

rized as follows:

The Embers Supper Club

All of Embers’ stock is owned by Comer. R. 251. At all

relevant times, Comer participated in virtually all aspects of

business at the Club, a bar where horses and gambling

appeared to be the preoccupation of both the owner and the

so-called “cook.” R. 257-60. Indeed, Comer was heavily in-

volved in horse racing and gambling. He at times owned as

many as 50 race horses, R. 399, and he entered them in races in

at least nine states, R. 390. Comer routinely gambled on his

horses, as he testified, “[w]henever I thought they would win.”

R. 288. He admitted to placing bets with “bookies” who were

operating illegally “unless,” as he stated at trial, “I won and

they didn’t pay.” R. 400.

At the Club, Comer maintained a complete, up-to-date

“library” of horse racing periodicals and materials useful for

gambling on races. R. 295. He would have bets placed by the

“cook” at the Club, John Watts (“Watts”), R. 395, who was also

known by aliases such as “Wilcas John” and “Wilcas Watts,” R.

381. Comer would discuss horses with Watts at the Club and,

as Comer testified, “he and I from time to time sat down with a

betting form and talked about races” at the Club. R. 387. Watts

himself made use of the materials in the Club’s “library.” Jd.’

After the raid, criminal charges of illegal gambling were

bronght against Watts; the charges ultimately were dismissed

before trial. R. 302, 310.

7 Although Watts was designated as the “cook” and, according to Comer,

worked in this capacity full-time at a salary of $100 to $100 per week, the

Club's food sales were sparse. See note 6 supre.

9

From its inception, Embers had failed to earn a profit.

Embers experienced losses every year from 1970 through

1973. R. 492-94, 542-43, 547. There was no evidence admitted

at trial that Embers had suffered any business loss as a result

of the news reports at issue.

The Raid At The Club

In July 1972, a customer advised Comer that she had heard

from three men that if they could not collect on certain bets

placed with the “bookie at the Embers,” they would “blow the

place up.” R. 373-75, 592. According to police records, Comer

told the woman that “he knew of the bookmaking activities” at

his Club. R. 592. The woman then notified the Springdale, Ohio

Pulice Department.

Some time earlier, Sergeant Jefferson B. Hermann of the

Springdale Police Department had been at the Club where,

according to Sergeant Hermann, he saw “what appeared to be

wagering sheets.” R. 592." Shortly thereafter, Sergeant Her-

mann swore to an Affidavit for Search Warrant, which was

filed ‘r, che Hamilton County, Ohio Municipal Court. /d. In the

Af:idavit, sergeant Hermann described the woman’s report of

gambling debts, the “bookie” and threatened violence at the

Club, as well as his own observations of illegal gambling para-

phernalia at the Club. /d. Pursuant to this Affidavit, on Fri-

day, July 21, 1972, the Hamilton County Municipal Court

issued a warrant to search the Club for “apparatus, books,

sheets or other devices or paraphernalia for recording wa-

gers.” R. 593.

Pursuant to the warrant, the Springdale Police Department

raided and searched the Club at 4:15 p.m. on July 21, 1972. R.

594. The raid was conducted during the Club’s busiest period—

the Friday evening cocktail hour—by four uniformed police

* Due to the trial court's decision granting the Station's motion for directed

verdict, the Station did not put on any evidence at trial, and Sergeant

Hermann did not testify. However, Embers itself introduced affidavits and

sworn statements by the Sergeant. R. 587, 592-94.

10

officers. R. 284, 371-72, 587. The officers blocked all of the

entrances to the Club for the duration of the raid, which lasted

an hour and a half. R. 285-86, 371. Police refused to allow

customers to depart, and a number of individuals were locked

in the Club, against their will, for over an hour. R. 371-79.

Several people who attempted to patronize the Club during the

cocktail hour were turned away. /d.

On July 21, 1972, Sergeant Hermann made an official report

of that day’s raid in the daily log book of the Springdale Police

Department:

4:15 P.M. With a search warrant issued by Judge Paul

George went to the Embers er Club, 332 Northland

Blvd. and search(ed] the building for betting slips for

horse races. Numerous forms and betting slips were re-

moved from the premises and will be turned over to the

Hamilton County Pros. office and the State Liquor Board.

JH RP RK BW

R. 487.° According to the offi ‘al Return on Search Warrant

filed in the Hamilton County Municipal Court, Sergeant Her-

mann and his officers seized 17 Daily Racing Forms; a notebook

entitled “The Handy Pocket Calculator for Two and Three

Horse Parlays and Memo Book”; eleven Kentucky Sports Bul-

letins; and “6 sheets of papers w/numbers and combinations &

bet slips.” R. 299, 594.

The News Reports At Issue

On Friday, July 21, 1972, the night of the raid, the Station

reported the police action on its 11:00 p.m. newscast. The

script of the July 21 news report reads, in its entirety:

ee Police raided the Embers Supp[er] Club, on

i) d Boulevard, this afternoon, and seized racing

® Sergeant Hermann subsequently executed an affidavit in which he ex-

plained that “the word ‘forms’ in [the] entry [in the police log book) desig-

nates and means racing forms which were removed from the premises

together with betting slips for horse races and other gambling parapher-

nalia.” R. 587. Sergeant Hermann also made clear that the entry is “an

official record entry of the city of Springdale police department and is an

official public record of said city.” /d.

1]

forms, betting slips, and other gambling paraphrenalia

{sic}. Police said they acted ona tip, that handbook opera-

tors from Elmwood Place h{ad] set up operation there. So

far, no arre(sts] have been made; the Club itself remains

open.

R. 578.

Two days later, on July 23, 1972, the Station broadcast its

regular Sunday night recapitulation of the week’s news on its

11:00 p.m. newscast. R. 56, 123. That Sunday’s news program

reviewed three separate incidents involving police action and

gambling activities: the arrest of two “bookies” 'n incidents

unrelated to the Club and the raid of the Club. The complete

script of the July 23 news report reads:

Business went sour for some of the area’s bookies. . . in

Elmwood police seized one man doing business on foot,

another operating out ofa restaurant on Vine Street. And,

in Springdale, the Embers Club was raided,’ and police

seized bettings [sic] slips and equipment.

R. 580.

Nowhere did either of the two news reports suggest that

Embers or its sole shareholder Comer had participated in, or

even known of, gambling activites. Indeed, the reports did not

indicate that any named person or entity had engaged in

wrongful conduct.

At trial, Lumanick described how the Station regularly pre-

pared news reports such as these, which are based on police

action. R. 77-84. As a matter of establishéd procedure, a Sta-

tion employee monitored police radio broadcasts. R. 76-77.

When that employee heard of police action, such as an arrest or

raid, he telephoned the appropriate law enforcement agency

for verification and additional information. R. 77-80. He then

furnished the information he compiled to a writer, such as

Lumanick, who drafted a script. R. 78-79. Finally, the news

report was given to Schottelkotte. R. 79. If Schottelkotte, in

his editorial judgment, approved the report, he would read it

on the nightly news program he had anchored for more than 20

years.

12

Lumanick testified that he must have written the July 21

news report, since he recognized the style as his own. R. 41.

Schottlekotte drafted the script of the July 23 recapitulation.

R. 123. The information concerning the Club in the July 23

report was based on the July 21 report and, in turn, official

police information. R. 123-24. Embers presented no evidence

that either news report was prepared in derogation of the

customary procedures employed by news personnel at the

Station or by other professional broadcast journalists. Embers

did not call the Station employee who gathered the information

contained in the July 21 news report or police personnel to

testify.

At trial, therefore, the accuracy of the news reports was

wholly uncontroverted when Embers rested upon completion

of its case-in-chief. It was undisputed that police and Comer

both were informed that if the “bookie at the Embers” did not

pay his debts, three men would “blow the place up.” R. 373-75,

592. Similarly, it was uncontroverted that police did raid the

Club on July 21, 1972, and chat police did seize “racing forms,”

“betting slips,” and “other gambling paraphernalia”—all as

reported in the broadcasts. R. 284-305, 587.

Indeed, Embers alleged that the news reports are false in

only a trivial and ultimately frivolous respect. Embers

asserted that the July 21 news report is false in stating that

“police said they acted on a tip, that handbook operators from

Elmwood Place had set up operations there.” According to

Embers, this statement implies that it was no more than a front

for crganized crime. However, prior to resting its case at trial,

Embers produced no evidence whatever to demonstrate that

the news report’s reference to “handbook operators from

Elmwood Place” is false in any sense. No police personnel were

called by Embers to testify that such a statement had not been

made to the Station. No testimony was elicited that police did

not act on such a tip. Indeed, Embers introduced no evidence

13

that Elmwood Place gamblers had not been operating at the

Club.”

REASONS FOR GRANTING THE WRIT

The Ohio Supreme Court's Decision Unconstitutionally

Fails To Require The Plaintiff To Prove A

Prima Facie Case Of Defamation.

This Court’s decisions make clear that the First and Four-

teenth Amendments forbid the imposition of defamation liabil-

ity unless the plaintiff establishes at trial each element of its

defamation claim, including falsity, a defamatory reference to

the plaintiff, fault, and actual injury to reputation as a proxi-

mate result of the defamation. As a matter of federal con-

stitutional law, a court no longer may indulge in presumptions

adverse to the defendant with respect to these elements at the

close of the defamation plaintiff's evidence at triai.

In the instant case, the decision of the Ohio Supreme Court

ignores the “constitutional command of the First Amendment”

set forth in Gertz v. Robert Welch, Inc., 418 U.S. 323, 349

(1974). In Gertz, this Court held that, because of the First

Amendment values at stake in libel actions, “state remedies for

defamatory falsehood” must “reach no farther than is neces-

sary to protect the legitimate [state] interest involved.” Jd.

The Court in Gertz delineated the only state interest that

warrants the imposition of defamation liability: “the compensa-

tion of individuals for harm inflicted on them by defamatory

falsehood.” Id. at 341 (emphasis added).

Absent a prima facie showing by the plaintiff that it is

entitled to recovery, permitting a defamation action to with-

©The only remaining claim of falsity made by Embers was its assertion

that the July 23 report states that “Embers is an area bookie.” However, the

July 23 report nowhere contains such a statement. Indeed, the July 23 news

report, which describes two arrests of unidentified “bookies” as well as the

raid at the Club, is incapable of being understood as referring to the Clubasa

“bookie.”

14

stand a motion for directed verdict renders meaningless the

First Amendment guarantees articulated in Gertz. By presum-

ing falsity, fault, and injury, and by authorizing recovery for

statements that clearly are not defamatory of the plaintiff, the

Ohio Supreme Court in the instant case has opened the way for

a gratuitous award of money damages. Such an award can only

punish the Station for accurately informing the public about

law enforcement activities without advancing any legitimate

state interest in providing remedies for the publication of

defamatory falsehood. Such legitimate state interests are im-

plicated only when the plaintiff demonstrates, prima facie,

that:

(a) the statement complained of is defamatory of the

plaintiff;

(b) the statement is not substantially true;

(c) the defendant was at fault with regard to the truth

or falsity of the statement; and

(d) the plaintiff suffered actual injury to reputation as

a proximate result of the statement.

Because the judgment below implicates the freedom of the

press at the core of the First Amendment, a reviewing court is

obliged to “make an independent examination of the whole

record,” Edwards v. South Carolina, 372 U.S. 229, 235 (1963),

in order to assure itself “that the judgment does not constitute

a forbidden intrusion on the field of free expression,” New York

Times Co. v. Sullivan, 376 U.S. 254, 2386 (1964). An indepen-

dent review of the record in the instant case reveals that the

judgment of the Ohio Supreme Court cannot stand.

1. ToSurvive A Motion For Directed Verdict, The Plaintiff

Must Demonstrate, Prima Facie, That The Statement

Complained Of Is Defamatory Of The Plaintiff.

It is fundamental that no plaintiff is entitled to any remedy

for defamation unless a defamatory statement has been pub-

lished about him. In New York Times Co. v. Sullivan, 376 U.S.

254, 288 (1964), this Court’s review of the record revealed that

15

the evidence was “constitutionally defective” because it was

“incapable of supporting the jury’s finding that the allegedly

libelous statements were made ‘of and concerning’ respon-

dent.” The Restatement (Second) of Torts sets forth the fun-

damental requirement that no recovery can be had unless the

statement is defamatory of the plaintiff.'' As the framers of the

Restatement correctly recognized:

The question of whether the communication was made of

and concerning the plaintiff has been held by the Supreme

Court to be one involving constitutional rights. As such, it

is subject to appellate review on up to the Supreme Court.

3 Restatement (Second) of Torts § 564, comment g (1977);

accord, id. § 580A, comment g; see Barger v. Playboy Enter-

prises, Inc., 564 F. Supp. 1151, 1152-53 (N.D. Cal. 1983);

Edgartown Police Patrolmen’s Association v. Johnson, 522 F.

Supp. 1149 (D. Mass. 1981); Ratner v. Young, 465 F. Supp.

386, 394 (D.V.I. 1979).

In the instant case, the news reports at issue scrupulously

avoid any defamatory reference to Embers. Nowhere do the

reports even suggest that Embers, its employees or principals

encouraged, participated in—or were even aware of—

gambling activities, much less gambling under the auspices of

organized crime. The reports merely state that the Club was

the scene of a police raid and of gambling activities.

Without exception, courts have held that a report of illegal

activity at a place of business does not constitute a libel against

the owner of the business, unless the owner itself is charged

with encouraging or acquiescing in the misconduct. In El

Meson Espanol v. NYM Corp., 521 F.2d 737 (2d Cir. 1975), for

instance, a magazine contained an article stating that the res-

taurant owned and operated by the plaintiff was a “good place[]

'! A defamatory communication is made concerning the person to whom

its recipient correctly, or mistakenly but reasonably, understands that

it was intended to refer.

3 Restatement (Second) of Torts § 564 (1977).

16

to meet a connection” to buy cocaine. /d. at 738. The court

found “nothing in the article charging that the plaintiff con-

ducts his [restaurant] improperly, or that he is responsible for

the character of his guests.” /d. at 740 (quoting Kennedy v.

Press Publishing Co., 41 Hun. 422, 422-23 (N.Y. 1886)). Ac-

cordingly, the court held that the owner of the restaurant

stated no cause of action for defamation.

Similarly, in Gwinn v. Washington Post Co., 211 F.2d 64)

(D.C. Cir. 1954) (per curiam), the owners of a restaurant\

brought an action for defamation based on a report that police

officers and federal agents arrested five persons at the res-

taurant. Because the report “fairly read, contain{ed] nothing

defamatory of the [restaurant owners] or of their business,”

the court granted summary judgment for the newspaper. /d.

at 641. And in Hatjioannou v. Tribune Co., 8 Media L. Rep.

. (BNA) 2637 (Fla. Cir. 1982), a newspaper identified the

“Stable Lounge,” a bar owned by the plaintiff, as a “trouble

spot” requiring frequent visits from law enforcement officers.

Id. at 2637. Since the articles in question “did not accuse the

Stable Lounge of encouraging criminal conduct,” the court

dismissed the plaintiff's defamation action. /d. at 2638. The

court declared:

The portrayal of a business establishment as the scene of

disturbances or crime is not libelous.

Id. (emphasis in original).

Accord, Hamilton's Clubhouse, Inc. v. United Press Int'l, Inc., 9 Media

L. Rep. (BN A) 2453 (D. Iowa 1983) (corporate owner of nightclub not libeled

by report of arrest at club); Fairyland Amusement Co. v. Metromedia, Inc.,

413 F. Supp. 1290 (W.D. Mo. 1976) (report of high incidence of rape in and

around amusement park not defamatory of corporate owners of park); Coop-

er v. Miami Herald Publishing Co., 159 Fla. 296, 31 So. 2d 382 (1947) (news

report that murder occurred in plaintiff's restaurant held not defamatory of

plaintiff); Schnable v. Meredith, 378 Pa. 609, 107 A.2d 860 (1954) (no cause of

action based on article about gambling and reporting police seizure of slot

machines on plaintiff's property); Richwine v. Pittsburgh Courier Publishing

Co., 186 Pa. Super. 644, 142 A.2d 416 (1958) (no cause of action based on

report that amusement park owned by corporate plaintiff was scene of orgy);

Maglio v. New York Herald Co., 93 A.D. 546, 87 N. Y.S. 927 (1904) (no cause

of action based on report that hotel kept by plaintiff harbored murderer).

17

These cases make clear that no state interest is served by

allowing gratuitous recovery where, as here, nothing

defamatory has been said about the owner of a business re-

ported merely to be the scene of improper activity. The Ohio

Supreme Court, in its zeal to adopt “the negligence standard,”

simply ignored this dispositive issue and wholly disregarded

the constitutional mandate that these news reports, to be

actionable, must be defamatory of the plaintiff—a ground upon

which the trial court had granted the directed verdict at issue.

2. ToSurvive A Motion For Directed Verdict. The Plaintiff

Must Demonstrate, Prima Facie, That The Allegedly

Defamatory Statement Is Not Substantially True.

The decision below is fundamentally at odds with the First

Amendment mandate that the publication of truth is not

actionable in defamation. See, e.g., New York Times Co. v.

Sullivan, 376 U.S. 254, 279 (1964); Gertz v. Robert Welch, Inc.,

418 U.S. 323, 341 (1974). Despite findings of substantial truth

by both courts below it, and Embers’ failure to submit any

evidence of falsity during its case-in-chief, the Ohio Supreme

Court indulged in the presumption of falsity forbidden by the

First Amendment. In order to reverse the directed verdict

that had been granted at the close of Embers’ evidence, the

Court accepted as proven fact the bald allegations of falsity

made in Embers’ Complaint, which were nowhere supported

by evidence introduced at trial. As a review of the record

amply reveais, Embers failed to satisfy its constitutional

obligation to present evidence of falsity as part of its case-in-

chief.

The record is completely devoid of evidence to contradict the

accuracy of either news repor\. Indeed, as the dissent below

correctly concluded, “the actual testimony received at trial

substantiated the truth of the publication.” App. 7a. It was

uncontroverted at trial that the raid described in the news

reports occurred and that police seized gambling equipment at

the Club. Despite ample opportunity to do so, Embers adduced

18

no evidence that police did not inform the Station that the raid

was based con a tip that handbook operators from Elmwood

Place were present at the Club. On the contrary, the evidence

was clear that Embers maintained a “library” of materials for

betting on races and that police learned the Club would be

“blown up” if the “bookie at the Embers” did not pay his

gambling debts. Embers easily could have called police person-

nel to testify that the police had not acted on a tip concerning

handbook operators from Elmwood Place. Presumably, having

had nearly a decade to prepare its case for trial, Embers

investigated this matter and concluded it would better serve

its interests not to call police personnel to testify on its behalfat

trial. Thus, the only basis upon which the Ohio Supreme Court

could reverse the findings of both lower courts on the issue of

substantial truth was to presume falsity anc thereby excuse

Embers’ failure to introduce evidence of falsity at trial."

This Court has repeatedly explained that “defamatory false-

hood” is unworthy of First Amendment protection only be-

cause “there is no constitutional value in false statements of

fact.” Gertz v. Robert Welch, Inc., 418 U.S. 328, 340 (1974)

(emphasis added). Accordingly, as early as New York Times

Co. v. Sullivan, 376 U.S. 254, 271 (1964), the Court made clear

It is precisely at the close of the defamation plaintiff's case-in-chief at

trial—and the motion of the defendant for a directed verdict—that the

constitutional strictures against strict liability, presumed falsity, and pre-

sumed damages come into play. At this stage of the case, only if the

plaintiff—having now had a full opportunity to do so at trial—has come forth

with evidence that each element of its cause of action is prima facie satisfied

can its defamation claim survive a motion for a directed verdict. Thus, a

greater quantum of proof is necessary in a defamation case to surmount a

directed verdict motion than is needed to overcome a motion to dismiss or for

summary judgment. See 9 C. Wright & A. Miller, Federal Practice and

Procedure § 2532 (1971). Indeed, the same quantum of evidence can require

that a motion for summary judgment be denied because of a “genuine issue as

to (a) material fact” and that a motion for directed verdict be granted because

“reasonable minds could come to but one conclusion upon the evidence.” Ohio

R. Civ. P. SX A4), 56(C).

19

that “[{ajuthoritative interpretations of the First Amendment

guarantees have consistently refused to recognize an excep-

tion for any test of truth. . . and especially one that puts the

burden of proving truth on the speaker.” Specifically, the

Court in New York Times recognized that “[a]llowance of the

defense of truth, with the burden of proving it on the defendant

does not mean that only false speech will be deterred. Even

courts accepting this defense as an adequate safeguard have

recognized the difficulties of adducing legal proofs that the

alleged libel was true in all its factual particulars.” Jd. at 279.

Because of the constitutional difficulties inherent in any liabil-

ity rule that presumes that an allegedly defamatory statement

is false, this Court in New York Times concluded that such a

presumption “dampens the vigor and limits the variety of

public debate. /t is inconsistent with the First and Fourteenth

Amendments.” Id. (emphasis added).

Subsequent decisions have confirmed that the common law

rule of presumed falsity is inconsistent with constitutional

princip.es. In Gertz v. Robert Welch, Inc., 418 U.S. 323, 340

(1974) (emphasis added), the Court explained that even with

respect to so-called “private” plaintiffs, “a rule of strict liability

that compels a publisher or broadcaster to guarantee the

accuracy of his factual assertions may lead to intolerable self-

censorship.” Accordingly, the Court in Gertz held that strict

liability is constitutionally impermissible precisely because

“{ajliowing the media to avoid liability only by proving the

truth of all injurious statements does not accord adequate

protection to First Amendment liberties.” /d.

Thus, the Ohio Supreme Court’s decision to reverse the

directed verc‘ct granted by the trial court, in the face of

Embers’ failure to submit any evidence of falsity at trial,

impermissibly transgresses the constitutional requirement

that only the publication of defamatory falsehood is actionable

in a libel suit. The decision, which simply assumes tiat a

showing of falsity is not necessary, unconstitutionally permits

liability to be imposed for the publication of truth.

20

3. ToSurvive A Motion For Directed Verdict, The Plaintiff

Must Demonstrate, Prima Facie, That It Suffered

Actual Injury To Reputation As A Proximate Result Of

The Allegedly Defamatory Statement.

In Gertz, this Court declared that the “countervailing state

interest” in affording remedies for defamatorv falsehood “ex-

tends no further than compensation for actual injury.” 418

U.S. at 349. Common law doctrines of presumed damages, like

those of presumed falsity and strict liability, unnecessarily

“exacerbate([] the danger of media self-censorship.” /d. at 350.

The Court in Gertz explained that the “izrgely uncontrolled

discretion of juries to award damages where there is no loss

unnecessarily compounds the potential of any system of liabil-

ity for defamatory falsehood to inhibit the vigorous exercise of

First Amendment freedoms.” Jd. at 349. Specifically, the

Court concluded that “the doctrine of presumed damages in-

vites juries to punish unpopular opinion rather than to compen-

sate individuals for injury sustained.” Jd. Moreover, the Court

declared that there is no substantial state interest in “securing

for piaintiffs . . . gratuitous awards of money damages far in

excess of any actual injury.” /d. This “constitutional command

of the First Amendment” requires, in each case, that any

“award[] must be supported by competent evidence concern-

ing the injury.” Jd. at 349-50. In addition, compensation in

defamation actions is constitutionally permissible only for “in-

jury sustained by the publication.” /d. at 349 (emphasis added).

Thus, a plaintiff must also demonstrate that his damages were

proximately caused by the alleged defamation. Littiefield v.

Fort Dodge Messenger, 614 F.2d 581 (8th Cir.), cert. denied,

445 U.S. 945 (1980).

A review of the record demonstrates that the Ohio Supreme

Court has cleared the way for an improper award of presumed

damages in this case."* There is no evidence that Embers ever

“ Corporate defamativn plaintiffs, such as Embers, are incapable of ex-

periencing such types of actual injury as personal hunuliation, embarrass-

ment, mental anguish or suffering. Golden North Airways, Inc. v. Tanana

Publishing Co., 218 F.2d 612 (9th Cir. 1954).

21

earned a profit, before or after the news reports at issue were

broadcast. In fact, Embers suffered losses every year from

1970 through 1973. R. 492-94, 542, 543, 547. Comer claimed

that after the raid and news reports business “declined

drastically,” R. 335, but actually the days following the news

reports were among the month’s busiest, R. 506. Nowhere

could Comer support his speculations as to losses with docu-

ments or records. He stated, for instance, that his stock in the

corporation was worth $150,000 prior to the raid and $40,000

afterwards. R. 356-57, 514-17, 546. However, there was no

evidence whatever as to the value of any of Embers’ assets, the

amount of its paid-in capital, shareholder equity, or liabilities.

Similarly, Comer testified that Embers had a “break-even

point” of $6,500 to $7,000 per month, R. 472, 553-54, and that in

August 1982 the corporation grossed only $4,321, R. 334-35.

Yet he furnished no documentation of any of Embers’ actual

monthly expenses for any period.

Moreover, the Ohio Supreme Court has authorized recovery

by Embers even though the record is devoid of evidence that

Embers’ injuries, if any, were proximately caused by the news

reports at issue. At trial, Embers failed to demonstrate that its

alleged damages were caused by the Station, rather than by

the police raid itself. Indeed, the uncontroverted evidence

demonstrates that the Club’s regular customers learned of the

raid as first-hand participants, when they were locked out of

the busy Friday cocktail hour or were forced to remain inside

the Club for the entire hour-and-a-half raid. R. 286, 371-72,

379.

In the view of the Ohio Supreme Court, actual injury was

proven merely because Embers’ “chief executive officer testi-

fied concerning the business loss of plaintiff.” App. 6a. In fact,

however, Comer did no more than surmise that his own stockin

the corporation was worth less after the raid and news reports

than before them. At the close of Embers’ case, the trial court

excluded this testimony as too speculative to be placed before

the jury. By permitting this wholly unsupported assertior. to

pass for evidence of actual injury, the Ohic Supreme Court has

22

made a mockery of the First Amendment’s command that

defamation awards be rooted in harm suffered. By requiring

the defendant to demonstrate the absence of actual injury

where the plaintiff itself has shown none, the Ohio Supreme

Court has reinstated the doctrine of presumed damages. This

approach is inconsistent with the plain teaching of Gertz.

4. ToSurvive A Motion For Directed Verdict, The Plaintiff

Must Demonstrate, Prima Facie, That The Defendant

Was At Fault In Publishing The Allegedly Defam: ‘ory

Statement.

The decisions of this Court recognize that strict liability for

defamation produces “intolerable self-censorship.” Gertz, 418

U.S. at 340. Accordingly, the Court held in Gertz that defama-

tion liability is precluded absent a demonstration, even by a

“private” plaintiff, that the defendant was at fault with regard

to the truth or falsity of the publication at issue.

In reversing the directed verdict granted by the trial court,

the Ohio Supreme Court assumed that Embers had demon-

strated a prima facie case under the negligence standard,

despite the undisputed evidence that the Station had accurate-

ly reported information provided by police officials.” This

assumption is wholly at odds with the prohibition of strict

liability articulated in Gertz.

At trial, Embers produced no evidence whatever that the

Station was negligent. with respect to the broadcast of either

news report at issue. Lumanick explained how the Station

'S It had long been settled in Ohio that reports of oral statements of police

are privileged, even when the statements do not appear in police documents.

Torski v. Mansfield J. Co., 100 Ohio App. 538, 137 N.E.2d 679 (1965).

Indeed, Torski had emerged as a nationally recognized authority for the rule

that “an immaterial mistake . . . does not make defendant liable.” W. Pros-

ser, Handbook of che Law of Torts 832 n.60 (4th ed. 1971) (citing Torski). The

Ohio Supreme Court ignored the well established precedent in Torski as well

in reversing the decisions of the trial court and court of appeals.

23

prepared news reports describing police action. R. 77-83. It

was undisputed at trial that when the Station learned of police

action, such as an arrest or raid, it did not simply broadcast a

news report, relying solely upon the police radio. Instead, the

Station telephoned the police department to obtain verification

and additional facts. /d.

Embers offered no evidence of deviation from this procedure

in the instant case. If ei*her news report contained information

which had not been furnished by the police, it was incumbent

upon Embers as plaintiff so to demonstrate. Embers readily

could have called police personnel to testify, if they could, to

facts contrary to the report’s assertion that its contents were

provided by the police. Alternatively, through discovery, Em-

bers could have sought the name of the Station employee who

compiled and verified the information reported about the Club.

Although it had over nine years to prepare for trial, Embers

undertook neither of these efforts. As a matter of federal

constitutional law, the risk of Embers’ failure to produce evi-

dence concerning the Station’s handling of these matters must

be borne by Embers.

Embers purports to find evidence of negligence in the fact

that none of its employees were contacted by the Station prior

to the broadcasts. This assertion flies in the face of Gertz’ plain

holding that a state cannot, in the guise of applying a fault-

based standard, “purport[] to condition civil liability on a fac-

tual misstatement whose content did not warn a reasonably

prudent editor or broadcaster of its defamatory potential.” 418

U.S. at 348. The news reports at issue -ontain no defamatory

potential whatever, for they scrupulously refrain from accus-

ing Embers. or any of its employees or principals, of any

participation in or knowledge of gambling activities. There was

simply no need to contact a representative of Embers, since

the news reports at issue accuse it of nothing. Indeed, as the

court of appeals correctly held, “the actual testimony received

at trial substantiated the truth of the publication, so. . . it is

not easy te detertnine how additional efforts at verification

“re

24

(even if such be deemed a requirement of due care) would have

tered the tenor of the publication.” App. 15a.

A defamation plaintiff's inability to come forth at trial with

evidence of fault must result in a directed verdict for the

defendant. With the full arsenal of discovery tools readily

available in libel litigation, see Herbert v. Lando, 441 U.S. 153

(1979), a defamation plaintiff must itself suffer the risks of

evidentiary failures at the trial stage. Permitting a case to goto

the jury where the evidence of fault is nonexistent would

reinstate the discredited rule of strict liability. Indeed, a court

should be especially wary of the forbidden inference that,

merely because a defamatory falsehood was published, the

publisher must have been negligent or otherwise *t fault. It is

the plaintiffs obligation to produce evidence of fault. As the

Utah Supreme Court explained in Seegmiller v. KSL, Ine., 626

P.2d 968, 976 (Utah 1981):

[T]he important interests to be protected, which are

founded in the First Amendment, require that juries not

be allowed to conclude that because a false, defamatory

statement was published, negligence must therefore have

occurred. Res ipsa loquitur must be employed with great

care. We concur with Comment g to § 580B of the Restate-

ment (Second) of Torts . . .:

‘the court should be cautious in permitting the doctrine of

res ipsa loquitur to take the case to the jury and permit the

jury, on the basis of its own lay inferences, to decide that

the defendant must have been negligent because it pub-

lished a false and defamatory communication. This could

produce a form of strict liability de facto and thus cireum-

vent the constitutional requirement of fault.’

Id. (quoting 3 Restatement (Second) cf Torts § 580b, comment

g (1977)).

CONCLUSION

In view of the Ohio Supreme Court’s failure to require a

defamation plaintiff to establish a prima facie case in order to

25

overcome a motion for directed verdict, the Station respectful-

ly requests that its petition be granted and the decision below

be summarily reversed in accordance with S. Ct. R. 23.1.

Respectfully submitted,

Bruce W. SANFORD

Counsel of Record

LEE LEVINE

BRIAN S. HARVEY

BAKER & HOSTETLER

818 Connecticut Ave., N.W.

Washington, D.C. 20006

(202) 861-1500

Counsel for Petitioner

4 oe

a ~ :

be atu ATA

APPENDICES

la

APPENDIX A

[The Supreme Court of the State of Ohio]

EMBERS SUPPER CLUB, INC.,

Appellant,

Vv.

ScrRiIpPs-HOWARD BROADCASTING Co.,

Appellee.

{Cite as Embers Supper Club, Inc. v. Scripps-Howard

Broadcasting Co. (1984), 9 Ohio St. 3d 22.)

Defamation—Corporate plaintiff not a public figure or public

official—Ordinary negligence standard adopted.

O.Jur 3d Defamation §§ 42, 80.

In cases involving defamation of private persons, where a

prima facie showing of defamation is made by the plaintiff, the

question which a jury must determine by a preponderance of

evidence is whether the defendant acted reasonably in at-

tempting to discover the truth or falsity or defamatory charac-

ter of the publication.

(No. 83-102—Decided January 11, 1984.)

Appeal from the Court of Appeals for Hamilton County.

STATEMENT OF THE CASE

Plaintiff-appellant, Embers Supper Club, Inc., commenced

an action for damages against defendant-appellee, Scripps-

Howard Broadcasting Co. (WCPO-TV), for two separate

broadcasts aired on WCPO-TV. The first broadcast on July 21,

1972, stated:

“Springdale police raided the Embers Supper Club, on

Northland Boulevard, this afternoon, and seized racing forms,

betting slips, and other gambiing paraphernalia. Police said

they acted on a tip, that handbook operators from Elmwood

Place had se. ip operation there. So far, no arrests have been

made; the club :'self remains open.”

2a

Two days later, on July 23, in a televised review of the

week’s news program, the same subject was covered concern-

ing the plaintiff in this language:

“Business went sour for some of the area’s bookies * * * in

Elmwood police seized one man doing business on foot, another

operating out of a restaurant on Vine Street. And, in Spring-

dale the Embers Club was raided, and police seized betting

slips and equipment.”

These broadcasts stem from a police raid of the Embers

Supper Club based upon a valid search warrant. As indicated

by the return on the search warrant the police seized seven-

teen Daily Racing Forms; a booklet entitled “The Handy Pock-

et Calculator for Two and Three Horse Parlays and Memo

Book,” eleven Kentucky Sports Bulletins and six sheets of

paper with numbers and combination and betting slips.

Albert J. Schottelkotte, director of news and special events

for WCPO-TV, admitted that “gambling in Elmwood Place had

been linked to organized crime.” The official pclice report of

the Embers raid made no mention of the word “bookies” and no

reference to Elmwood Place. The Embers Supper Club was

located in the suburb of Springdale, not Elmwood Place. Schot-

telkotte admitted that the thrust of the news publication was

that “handbook operators in Elmwood Place, one or more of

them, as an entity, that they had set up operations in the

Embers.” Plaintiff's expert witness, Jon C. Hughes, an assist-

ant professor in journalism, testified that the July 21, 1972

publication attributed to the Springdale police as a statement

ef fact that “handbook operators from Elmwood Place had set

up operations” at the Embers.

The two broadcasts were therefore false in linking the Em-

bers Supper Club with gambling in Elmwood Place and its

organized crime connections.

Plaintiffs chief executive officer and sole shareholder,

Daniel S. Comer, testified there was no gambling activity

conducted at the Embers, and that no one from WCPO-TV

3a

ever contacted him concening the truth or falsity of the facts

contained in the two broadcasts. The seizure by the police of

gambling material at the Embers caused a citation for a gambl-

ing offense to be issued several days later against an Embers

cook named John Watts. The seized gambling materials were

presented at the Watts trial. That case was dismissed. No one

else affiliated with the Embers was charged with any gambling

activity.

At the close of plaintiff's evidence, the trial court granted a

directed verdict for the defendant. The court of appeals

affirmed.

OPINION

The cause is now before this court upon the allowance of a

motion to certify the record.

Strauss, Troy & Ruehlmann Co., L.P.A., Mr. Charles G.

Atkins and Mr. William R. Jacobs, for appellant.

Messrs. Wood, Lamping, Slutz & Reckman, Mr. Harry M.

Hoffheimer, Messrs. Baker & Hostetler, Mr. Bruce W. San-

ford, Mr. Lee Levine and Mr. Brian S. Harvey, for appeiee.

CLIFFORD F.. Brown, J. The directed verdict for defendant

requires determining the standard or rule for imposing liability

upon a defendant which publishes false statements concerning

a plaintiff who is not a public official or public figure. Since

plaintiff is not a public official or public figure, the holdings in

New York Times Co. v. Sullivan (1964), 376 U.S. 254, and

Curtis Publishing Co. v. Butts (1967), 388 U.S. 130, requiring

proof of actual malice by defendant are inapplicable.

In New York Times Co. v. Sullivan, the United States

Supreme Court held that a “public official” could not maintain a

suit for defamation without showing by clear and convincing

evidence that the publisher acted with actual malice. In Curtis

Publishing Co. v. Butts, the court extended the actual malice

standard to “public figures.” This standard was further ex-

panded in 1971 when the Supreme Court decided the case of

da

Rosenbloom v. Metromedia, Inc. (1971), 403 U.S. 29. In

Rosenbloom, the court, in a plurality opinion, extended the

actual malice standard to private individuals where the matter

reported was of concern to the public.

Applying the Rosenbloom standard, the directed verdict

granted defendant would have been appropriate since there

was an absence of showing of actual malice on the part of

WCPO-TYV in its news reports. However, the United States

Supreme Court in 1974, retreated from its extension of the

Sullivan standard to private individuals. The case which ex-

pressed this move was Ge,tz v. Robert Welch, Inc. (1974), 418

U.S. 323. In Gertz, the necessity of proving actual malice in

defamation suits by private individuals against media defend-

ants was struck down. The court found that the individual

states should be permitted to set the standard of proof in cases

where an allegedly defamatory statement is published by a

media defendant concerning a private individual. The only

limitation on this was that a state would not be permitted to

impose “liability without fault, the States may define for them-

selves the appropriate standard of liability for a publisher or

broadcaster of defamatory falsehood injurious to a private

individual.” Gertz v. Robert Welch, Inc., at 347.

This court has not enunciated a standard of review for

defamation actions involving private individuals and the

media. A majority of other jurisdictions when faced with this

responsibility have set an ordinary negligence standard which

must be shown by a preponderance of the evidence. See Peag-

ler v. Phoenix Newspapers, Inc. (1977), 114 Ariz. 309, 560 P.

2d 1216; Dodrill v. Arkansas Democrat Co. (1979), 265 Ark.

628, 590 S. W. 2d 840, certiorari denied (1980), 444 U.S. 1076.'

' Phillips v. Evening Star Newspaper (C.A.D.C. 1980), 424 A. 2d 78,

certiorari denied (1981), 451 U.S. 989; Karp v. Miami Herald Publishing Co.

(Fla. App. 1978), 359 So. 2d 580, appeal dismissed (1978), 365 So. 2d 712;

Cahill v. Hawaiian Paradise Park Corp. (1975), 56 Hawaii 522, 543 P. 2d

1356; Troman v. Wood (1976), 62 Ill. 2d 184, 340 N.E. 2d 292; McCall v.

Courier-Journal & Louisville Times (Ky. 1981), 623 S.W. 2d 882; Godin v.

oa

We are persuaded that the negligence standard of review is

appropriate in this area. In cases involving defamation of pri-

vate persons, where a prima facie showing of defamation is

made by the plaintiff, the question which a jury must deter-

mine by a preponderance of evidence is whether the defendant

acted reasonably in attempting to discover the truth or falsity

or defamatory character of the publication. See, e.g., Peagler

v. Phoenix Newspapers, Inc., supra, at 315; Thomas H.

Maloney & Sons, Inc. v. E. W. Scripps Co. (1974), 43 Ohio

App. 2d 105 (72 0.0.2d 313).

This standard is applicable to the factual stance in this case.

It was error to direct a verdict for the defendant. We reverse.

Defendant further contends it is not liable as a matter of law,

and that a directed verdict for defendant was proper, because

defendant was privileged to publish government information

without incurring liability by reason of R.C. 2317.05 which in

pertinent part reads:

“The publication of a fair and impartial report of * * * the

issuing of any warrant, * * * or the filing of any * * * other

document in any criminal or civil cause in any court of compe-

tent jurisdiction, or of a fair and impartial report of the con-

tents thereof, is privileged * « * ." This contention is without

merit because the publication in this case was not mere report-

ing of the information included in a warrant or other document

but included references to bookmaking operations and

Elmwood Place which were not a part of official records.

Globe Publishing Co. (1975), 216 Kan. 223, 531 P. 2d 76; Stone v. Esser

County Newspapers, Inc. (1975), 367 Mass. 849, 330 N.E, 2d 161; Jacron

Sales Co. v. Sindorf (1976), 276 Md. 580, 350 A. 2d 688; Madison v. Yunker

(1978), 180 Mont. 54, 589 P. 2d 126; McCusker v. Valley News (1981), 121

N.H. 258, 428 A. 2d 493; Marchiondo v. Brown (1982), 98 N.M. 394, 649 P. 2d

462; Martin v. Griffin Television, Inc. (Okla. 1976), 49 P. 2d 85; DeCar-

valho v. DaSilva (R.1. 1980), 414 A. 2d 806; Memphis Publishing Co. v.

Nichols (Tenn. 1978), 569 S.W. 2d 412: Foster v. Laredo Newspapers, Inc.

(Tex. 1976), 541 S.W. 2d 809, certiorari denied (1977), 429 U.S. 1123; Seeg-

miller v. KSL, Inc. (Utah 1981), 626 P. 2d 968; and Taskett v. King

Broadcasting Co. (1976), 86 Wash. 2d 439, 546 P. 2d 81.

6a

Since defendant’s publication was not within the protections

of R.C. 2317.05 it does not escape the rule imposing liability

because of the common-law privilege defined in Restatement

of the Law, Torts 2d (1977) 297, Section 611:

“The publication of defamatory matter * * * ina report of an

official action or proceeding * * * is privileged if the report is

accurate and complete or a fair abridgement of the occurrence

reported.”

Defendant also contends the directed verdict was proper

because plaintiff failed to prove actual injury or damages. This

contention is without merit. Plaintiffs chief executive officer

testified concerning the business loss of plaintiff resulting from

the defamatory publication, thus creating an issue of general

and special damages to plaintiff. A corporate plaintiff has a

right to recover for its economic injury. Golden North Airways

v. Tanana Publishing Co. (C.A. 9, 1954), 218 F. 2d 612, 624.

For these reasons the judgment of the court of appeals is

reversed, and the cause is remanded to the court of common

pleas for a new trial.

Judgment reversed

and cause remanded.

CELEBREZZE, C. J.. SWEENEY and J. P. CELEBREZZE, JJ.,

concur.

W. Brown, LocHer and Houes, JJ., dissent.

Houmes, J., dissenting. | must dissent for a number of

reasons. At the outset, I seriously question whether the words

and phrases utilized by the defendant in its news reports were

defamatory as to this plaintiff. The publications, it would seem

to me, did not assert the commission of an offense by the

plaintiff corporation but, rather, that a raid was conducted on

the premises, and that certain gambling paraphernalia and

equipment had been seized. The law generally applied in this

regard is that a report or commentary of illegal activity at a

J

7a

place of business is not a libel against the owner of the business,

unless the owner itself is charged with initiating, encouraging

or acquiescing in the misconduct. See E/ Meson Espanol v.

NYM Corp. (C.A. 2, 1975), 521 F. 2d 737, and Gwinn v.

Washington Post Co. (C.A.D.C. 1954), 211 F. 2d 641.

Secondly, I believe that the trial court and the court of

appeals were correct in concluding that the complained of

reports were basically true. There is ample case law and legal

commentary to the effect that in a defamation action the plain-

tiff has the burden of proving that the publication was not true,

and if the evidence does not substantiate the falseness of the

publication, the plaintiff cannot prevail. Wilson v. Scripps-

Howard Broadcasting Co. (C.A. 6, 1981), 642 F. 2d 371, cer-

tiorari dismissed (1981), 454 U.S. 1130; Cor Broadcasting

Corp. v. Cohn (1975), 420 U.S. 469; Restatement of the Law,

Torts 2d (1977), Section 580B, Comment j. Additionally, Ohio

has provided by statutory enactment, in R.C. 2739.02, that:

“In an action for a libel or a slander, the defendant may allege

and prove the truth of the matter charged as defamatory.

Proof of the truth thereof shall be a complete defense. * * *”

Here, the evidence revealed that the newscasts were sub-

stantiated by testimony adduced during the plaintiffs case

that the police raid resulted in the seizure of the Daily Racing

Form; the Kentucky Sports bulletin; a trade publication of

entries and scratches at racetracks; a “Handy Pocket Calcula-

tor for Two and Three Horse Parlays and Memo Book”; and a

sheet of cardboard with handwritten figures on it, as well as

numerous papers with entries thereon. I can sec ne substantial

deviation from the truth in a publication which asserts the

police seizure of “ * * * racing forms, betting slips, and other

gambling paraphernalia * * * " or “ * « * betting slips and

equipment * * *,” in view of what had actually been con-

fiscated. In that truth is a complete defense in a defama ‘on

action alleging libe! or slander, this case upon the facts could

reasonably have been directed out on such issue.

Sa

Even if the above considerations are not deemed dispositive,

the existence of the privilege accorded by R.C. 2317.05 pro-

vides protection to the defendant in this case. Here, the

publications are a substantially accurate rephrasing of the

information contained in the official police report and, since the

record is absent any evidence of malice on the part of defend-

ant, one must conclude that the publications were privileged.

Finally, I note the absence in the record of anything from

which reasonable minds could have conclusled fault on the part

of defendant. While plaintiff argues that there was an inade-

quate veriiication by defendant of the facts of the case, and

accordingly acted negligently—upon the evidence adduced, I

cannot agree. The actual testimony received at trial sub-

stantiated the truth of the publication, so that it is difficult to

understand how additional efforts at verification would have

altered the tenor of the publication.

Based upon all of the evidence presented to the jury, the trial

court did not abuse its discretion in directing a verdict for

Scripps-Howard. Therefore, I would affirm the court of

appeals.

W. Brown and Locuer, JJ., concur in the foregoing dissent-

ing opinion.

9a

APPENDIX B

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

NO. C-810708

EMBEKS SUPPER CLUB, INC.,

Plaintiff-Appellant,

Vv.

Scripps-HOWARD BROADCAS”ING COMPANY,

Defendant-Appellee.

OPINION

FILED

COURT OF APPEALS

OCT 20, 1982

CLERK OF COURTS

APPEAL FROM THE COURT OF COMMON PLEAS

HAMILTON COUNTY, OHIO

Messrs. Strauss, Troy, & Ruehlmann Co., L.P.A., Charles G.

Atkins and William R. Jacobs, of counsel, 2100 Central Trust

Center, Cincinnati, Chio 45202, for Plaintiff-Appellant,

Messrs. Wood, Lamping, Slutz & Reckman, Harry M. Hof-

fheimer, of counsel, 900 Tri-State Building, Cincinnati, Ohio

45202, for Defendant-Appeliee.

PALMER, J.

On July 2, 1972, officers of the Springdale, Ohio, police force

entered the Embers Supper Club on a warrant to search for

10a

horse racing betting slips. Racing forms, betting slips, and

other paraphernalia were in fact found.’

On the same day as the raid, the following statement was

broadcast in a news program over television station WCPO-

TV, owned and operated by the defendant-appellee:

a dale Police raided the Embers Supper Club, on

orthland Boulevard, this afternoon, and seized racing

forms, betting slips, and other eye paraphernalia.

Police said they acted on a tip, that handbook operators

from Elmwood Place, had set up operations there. So far

no arrests have been made; the Club itself remains open.

Two days later, in a televised review of the week’s news

programs, a second reference to the Embers Supper Club was

broadcast.

Business went sour for some of the area’s bookies . . . in

Elmwood police seized one man doing business on foot,

another operating out of a restaurant on Vine Street. And,

in Springdale, the Embers Club was raided, and police

seized betting slips and equipment.

These two broadcasi references were the predicates for the

plaintiff-appellant’s action against the defendant-appellee for

defamation. Following preliminaries, including the filing of

several amended complaints, trial commenced but was in-

terrupted by the granting of a motion for a directed verdict at

the conclusion of the appellant’s case. This appeal was timely

filed therefrom.

In his first assignment of error plaintiff-appellant contends

that the trial court erred to his prejudice by directing a verdict

in favor of the defendant-appellee at the close of plaintiff-

' The following entry concerning the raid was made by the Springdale

Police Department in its daily log book:

4:15 P.M. With a search warrant issued by Judge Paul George went to

the Embers Supper Club, 332 Northland Blvd. and search the building

for betting slips for horse races. umerous forms and betting slips were

removed the premises and wil be turned over to Hamilton County

Pros. office and the State Liquor Board. JH RP RK BW

lla

appellant’s evidence. The basic question for this Court is

whether plaintiff-appellant made a prima facie case of action-

able defamation. Viewing the evidence most strongly in favor

of the party against whom the motion is directed, as Civ. R. 50

requires, we hold that reasonable minds could only have con-

cluded against the plaintiff on the determinative issues, and

that the Court of Common Pleas correctly directed a verdict

and entered judgment for the defendant. See Hawkins v. Ivy

(1977), 50 Ohio St. 2d 114, 363 N.E.2d 367.

It is of some importance to note, preliminariiy, the import of

recent decisions of the United States Supreme Court on the

law of libel and slander in this jurisdiction. Beginning with the

decision in New York Times Co. v. Sullivan (1964), 376 U.S.

254, 84 S. Ct. 710, a series of cases examined the traditional

rules of libel and slander as they comported themselves with

current views of First Amendment and other constitutional

rights and guarantees. Considering first the nature of malice

required to bottom an action of libel brought by a public official,

N.Y. Times Co. v. Suilivan, supra, and then by a public figure,

Curtis Publishing Co. v. Butts and The Associated Press v.

Walker (1967), 388 U.S. 120, 87S. Ct. 1975, the Supreme Court

passed to a consideration of libel actions brought by private

individuals meeting neither definition of a public official or

public figure. In Gertz v. Robert Welch, Inc. (1974), 418 U.S.

323, 94 S. Ct. 2997, the Court declined to apply the “actual

malice” requirement of N.Y. Times Co. v. Sullivan to actions

by private figures, but, in effect, eliminated the distinction

between libel per se and lidei per quod, in which the former

obviated the need for proof of general damages by conclusively

presuming them from the nature of the published words. The

Court held that, so long as they do not

impose liability without fault, the States may define for

themselves the appropriate standard of liability for a pub-

lisher or broadcaster of defamatory falsehood injurious to

a private individual.

Id., 418 U.S. at 347, 94S. Ct. at 3010.

12a

Fault having Leen established, said the Court, recovery may

be had for actual injury, but punitive damages may not be

recovered unless, in addition to fault, there is a determination

of knowledge of falsity or reckless disregard for the truth.

Applying these standards to Ohio law, the case of Thomas

H. Maloney & Sons, Inc. v. E. W. Scripps Co. (8th Dist. 1974),

43 Ohio App. 2d 105, 334 N.E.2d 494, cert. denied, 423 U.S.

883, 96 S. Ct. 151 (1975), offered the following restatements of

the present laws of libel in this jurisdiction:

We, therefore, hold that a private individual bringing a

libel suit based upon a publication which is defamatory on

its face must prove not only the publication of such state-

ment but aiso actual injury, and fault on the part of the

publisher. Such fault may consist of either negligent fail-

ure to exercise due care, or a greater degree of fault such

as express or actual malice.

Id. at 110; 334 N.E.2d at 498. The concurring opinion of Judge

Krenzler stated the rule in this fashion:

This (i.e. Gertz) means that a plaintiff must allege and ~

oti by a preponderance of the evidence a false and

ibelcus writing, negligence by the defendant, and dam-

ages. If a plaintiff wishes to recover special damages he

must allege and prove them. Ifa plaintiff in a libel action

wants to recover punitive damages he must allege and

prove that the defendant had knowledge of the falsity or

that he showed a reckless disregard for the truth.

Id. at 117; 334 N.E.2d at 502.

Bearing the above principles in mind, we must then proceed

to examine the evidence brought forward by the appellant in

pursuit of his claim of defamation to ascertain whether reason-

able minds could disagree as to the determinative issues of: (i)

whether the publications were false and defamatory; (ii)

whether they were nevertheless privileged; (iii) whether they

were uttered in fault, i.e., negligently, or in express or actual

malice; and (iv) whether they resulted in actual injury.

l3a

II

Appellee questions with some vigor whether the words

could have been construed as defamatory in the first instance.

Thus, he argues that the publieation does not assert the com-

mission of a criminal offense by the appellant corporation, but

rather that a raid was conducted and that gambling parapher-

nalia and equipment were seized on plaintiff's premises, neith-

er assertion necessarily involving the appellant entity iu «

criminal offense. Alternately, appellee argues that even if an

offense was charged to appellant in the publication, it did not

charge an indictable offense, i.e., a felony, citing Holling-

sworth v. Shaw (1869), 19 Ohio St. 430, and Davis v. Baron

(1875), 27 Ohio St. 326.

While the defamatory character of the publication is indeed a

threshhold issue, the point is here unnecessary to decide since

other deficiencies in the appellant’s case are clearly dispositive

of the appeal. Thus, where we must conclude, as we do, that

the publication was true, was in any event privileged, and was

published without fault by the appellee, it is unnecessary to go

further.’ Here, the evidence revealed that the publication was

substantiated by testimony adduced during the appellant’s

case that the police raid on the appellant resulted in the seizure

of the Daily Racing Form, the Kentucky Sports Bulletin, a

trade publication of entries and scratches at racetracks, a

“Handy Pocket Calculator :or Two and Three Horse Parlays

and Memo Book,” and a sheet of cardboard with handwritten

figures on it, as well as numerous slips of paper with entries

thereon. T.p. 293-303. We can see no substantial deviation

from the truth in a publication which asserts the police seizure

of “. . . racing forms, betting slips, and other gambling para-

phernalia. . .” or“. . . betting slips and equipment. . .” predi-

? Additional issues raised by the appellee in defense of the trial court’s

action, e.g., alleged deficiencies in proof of actual damages, and con-

stitutional privileges of the appellee corporation arising under the First

Amendment, are thus redundant to a decision herein, and are not further

discussed or decided.

l4a

cated on the foregoing. Since truth is a complete defense to an

action in libel or slander, R.C. 2739.02, the matter might well

have ended at this point and upon this issue.

But even if this consideration is not deemed dispositive, the

existence of the privilege accorded by R.C. 2317.04 and .05°

seems to us to extend protection to the appellee in this case.

Our conclusion in this respect follows the decision in Torski v.

Mansfield Journal Co. (Sth Dist. 1956), 100 Ohio App. 538, 137

N.E.2d 679, where the protection of the above statutes was

extended to a newspaper report based on information fur-

nished to a reporter by the desk man at a wolice station and

from a police report. While the publication transposed the age

of the rape victim from 24 years to 12 years, the Torski court

nevertheless held the publication privileged:

A newspaper account of judicial proceedings is privileged

where such account is fair, impartial, »nd substantially

3R.C. 2317.04 provides:

The publication of a fair and impartial report of the proceedings before

state or municipal legislative bodies, or before state or municipal execu-

tive bodies, boards, or officers, or the whole or a fair synopsis of any bill,

ordinance, report, resolution, bulletin, notice, petition, or other docu-

ment presented, filed, or issued in any sromeding before such legisla-

tive or executive body, board, or officer, shall be privileged, unless it is

proved that such publication was made maliciously.

R.C. 2217.05 provides:

The publication of a fair and impartial report of the return of any

indictment, the issuing of any warrant, the arrest of any person

of crime, or the filing of any affidavit, pleading, or other document in

any criminal or civil cause in any court of competent jurisdiction, or of a

fair and impartial report of the contents thereof, is privileged, unless it

is proved that the same was published maliciously, or that defendant

has refused or neglected to publish in the same manner in which the

publication complained of neti a a reasonable written explanation

or contradiction thereof b tiff, or that the publisher has refused,

upon request of the plaintiff, to publish the subsequent determination of

such suit or action. section and section 2317.04 of the Revised Code

do not authorize the publication of blasphemous or indecent matter.

l5a

accurate, even though it may contain matter otherwise

libelous.

Id. at 545, 1837 N.E.2d at 683. Here, the publications com-

plained of seem to us substantially accurate rephrasing of the

information contained in the official police report, and, since

the record is absent any evidence of malice on the part of

appellee, one must conclude that the publications were privi-

leged.

Finally, we note the absence in the record of anything from

which reasonable minds could have concluded fault on the part

of appellee. Certainly there was no evidence of malice, express

or actual, and while appellant emphasizes what it feels was an

inadequate verification by the apnellant of the facts of the

case—a consideration said to constitute a want of due care and

therefore negligence—we do not so read the record. As we

remarked earlier, the actual testimony received at trial sub-

stantiated the truth of the publication, so that it is not easy to

determine how additional efforts at verification (even if such be

deemed a requirement of due care) would have altered the

tenor of the publication.

The first assignment of error, directed to the alleged error of

the trial court in directing a verdict at the conclusion of the

plaintiffs case, is accordingly overruled.

The second assignment of error, directed to the alleged error

of the trial court in sustaining objections to appellant’s testi-

mony in support of damages, is overruled, as subsumed in our

determination with respect to the first assignment of error.

Even had the court permitted the evidence rejected or stricken

as to the appellant’s damages, the trial would have had to have

been concluded upon the motion for a directed verdict upon the

other determinative issues discussed above. No possible preju-

dice could therefore have attended the trial court’s resolution

of the damages issue.

The judgment is affirmed.

SHANNON, P. J., and BLack, J., Concur.

.

er ee

l6a

APPENDIX C

IN THE COURT OF COMMON PLEAS,

HAMILTON COUNTY, OHIO

CASE NO. A-726032

JUDGMENT ENTRY

EMBERS SUPPER CLUB, INC.,

Plaintiff,

wa

Scripps-HOWARD BROADCASTING Co.,

Defendant.

ENTERED JUL 30, 1981

This cause came on to be heard upon the merits and the jury

was selected and sworn.

Plaintiff proceeded with the presentation of its evidence and

at the close of Plaintiff's case, Defendant moved that the mat-

ter be arrested from further consideration by the jury and a

verdict be granted for defendant.

Upon a careful consideration of the evidence, the arguments

and the law, the Court determined said motion to be well taken

and granted the same for the following reasons:

1. For failure of Plaintiff to establish by a preponderance of

all of the evidence the requisite elements of the offense of

slander; and,

2. For failure of Plaintiff to establish by a preponderance of

the evidence, Plaintiffs claim for damages. The jury at this

point could only have speculated as to the damages and the

proximate cause of such damages. It is the Scotch verdict “Not

Proved.”

17a

Therefore the cause is arrested from further consideration

by the jury and a verdict directed for Defendant.

Costs in this case are taxed to the Plaintiff.

Exceptions are saved to the parties as their interests are

adversely affected.

Enter this 30th day of July,*1981.

PauL E. RILEY, Judge

by assignment

Rosert G. BURKHART

Trial Counsel for Defendant

CHARLES G. ATKINS

Trial Counsel for Plaintiff

18a

APPENDIX D

THE SUPREME COURT OF THE STATE OF OHIO

THE STATE OF OHIO,

City of Columbus.

EMBERS SUPPER CLUB, INC.,

Appellant,

Vs.

Scripps-HOWARD BROADCASTING Co.,

Appellee.

1984 TERM

To wit: January 11, 1984

No. 83-102

APPEAL FROM THE COURT OF APPEALS

for HAMILTON County

This cause, here on appeal from the Court of Appeals for

HAMILTON County, was heard in the manner prescribed by

law. On consideration thereof, the judgment of the Court of

Appeals is reversed for the reasons stated in the opinion filed

herein and cause remanded to the trial court for proceedings

consistent with the opinion rendered herein.

It is ordered and adjudged also that appellant recover from

appellee its costs expended in this Court; that a mandate be

sent to the COURT OF COMMON PLEAS to carry this judg-

ment into execution; and that a copy of this entry be certified to

the Clerk of the Court of Appeals for HAMILTON County for

entry.

19a

I, James Wm. Kelly, Clerk of the Supreme Court of Ohio,

certify that the foregoing entry was correctly copied from the

Journal of this Court.

Witness my hand and the seal

of the Court

this 4 day of April 1984

James Wm. Kelly, Clerk

s/ Sam F. Adkins, Deputy

20a

APPENDIX E

{Excerpt of trial transcript, containing motion to strike evi-

dence of damages and trial court’s bench ruling thereon, drawn

from Record filed in the Supreme Court of Ohio. ]

THE Court: Go ahead with your motion.

Mr. BuRKHART: First, Your Honor, since the cross-

examination of Mr. Comer, I respectfully move to strike his

testimony concerning damages.

The testimony that he gave concerning the break-even point

is obviously highly speculative, not based upon any intelligent

records that he has. The testimony that he has given is in-

credible. As a matter of fact, that is because he has changed his

testimony from $6,500 to $7,000, and now he is back down to

$6,000. It has not been supported by any reasonable records,

and he has not been qualified as an expert in this respect.

Consequently, Your Honor, I submit that his testimony is

incredible and unworthy of belief, and it should be inadmissible

as to that feature.

Also, Your Honor, his testimony with respect to the diminu-

tion of value of stock, obviously he has no background to

support that type of evaluation, and he has no basis for it in his

testimony that he gave here. He just took those figures out of

his head.

Aside from that, Your Honor, he just took a particular

period of time, from July 21, 1972 through August 31, 1972 and

he has given an appraisal of the value of the property on those

two dates. Those are not proper measures of damages. He

continued in the operation of the business. He wasn’t willing to

come in and show what his profits or losses were thereafter.

Consequently, Your Honor, that is absolutely not a proper

measure of damages, and I will move to strike all that testi-

mony.

2la

THE Court: Well, first of all I will go to the question of value

of the stock, and I permitted that testimony on the basis that

this was a shareholder, a single shareholder, even though the

lawsuit is brought on behalf of the corporation, a separate legal

entity, and I permitted the testimony as to the value of the

stock because he is the sole shareholder of the stock, so even

though there are separate legal entities, for all intents and

purposes Mr. Comer and the corporation are one and the same,

so far as whatever the value of the thing is.

Now, I am going to strike his testimony as to that value and I

am going to instruct the jury to disregard it. The values placed

on the stock on those dates are not supported by any credible

evidence that I have seen in this courtroom. Obviously, what-

ever that corporation owns, it owns certain personal equip-

ment, and it had a lease hold agreement, and it had the value of

the liquor license or whatever it is, but there was never any

testimony as to what furnishings were included, no testimony

as to the value of the lease hold, no testimony as to the value of

any of the equipment which was purchased after the fact, the

purchase agreement in 1973, and it would have been a liability

of the corporation for the balance of the lease. There is simply

no evidence to support the allegations of value.

Now, to get back to this break-even figure, it seems to me

that that has been all up and down the ladder. There is one

other thing on the question of diminution of value of the stock,

even loss of business is not supported by the evidence in my

estimation, and all the jury could do so far as that is concerned

is to speculate on what damages, if any, were incurred, pro-

vided they found liability on the other questions involved in

this lawsuit.

I find this break-even figure highly speculative, it balances

between $6,500 and $7,000, and then on redirect examination

he showed in a break-even figure of 15 percent. A break-even

figure to me means at some point your sales are sufficient to

cover your expenses, whatever they are. I don’t know how,

from the evidence that we have, they could arrive at a break-

22a

even figure. He explains that in September of 1971 it was

$7,000, and fer August it would vary, and he didn’t say how it

would vary or what would affect the variance, so I don’t know

how we can arrive at any average for that period of time, or for

anything pertinent to damages by way of these figures.

I think that the only reasonable conclusion that the jury

could reach from the testimony would be that it was $7,000 in

September of 1971, and heaven knows where it was in be-

tween. Again, I think we are back to speculation.

I will grant both of your motions, Mr. Burkhart. You may

have an exception to the Court's ruling, Mr. Atkins.

23a

APPENDIX F

{Excerpt of trial transcript, containing motion for directed

verdict and trial court’s bench ruling thereon, drawn from

Record filed in the Supreme Court of Ohio.)

Mr. BuRKHART: I have one further thing. The defendant

respectfully moves the Court for a directed verdict in this case

on the following grounds: The first ground is that there is

absolutely no libel in the statements that were published by the

defendant. There is no claim in any of those statements that the

plaintiff was in any way involved in gambling activities. They

have referred to gambling activities by others on those pve

mises.

The second basis is that the statements were accurate and

they were true, which is a legal defense.

The third basis is that the breadcasts were a fair synopsis of

information furnished from governmental sources such as the

police department, and also the warrant which is part of the

Court’s record, and those publications by the defendant were

presented in absence of malice, and it is obvious from the

testimony in the plaintiff's case that they were fuir synopses of

police information and the information taken from those rec-

ords that are before the Court. There was absolutely no evi-

dence in this case of malice, and there has been no claim of

malice in the amended pleadings.

All of the evidence clearly demonstrates that the reports

were accurately sufficient to meet the requirement of law.

The fourth point, there can be no actual malice, there can be

no liability in the absence of actual malice in so far as this case is

concerned. i am aware of the Maloney case but Maloney would

not have application here, because the two statutes which

permit publication of fair synopses unless there is malice, so

even in view of Maloney, because of those two statutes, they

still are required to show malice in this case, Your Honor, and

there has been no evidence of that malice.

24a

Aside from the absence of malice, the Court is not bound by

the Maloney decision. I believe we have provided the Court

with citations which indicate that there are other views con-

cerning this in states other than Ohio, and we are in hopes that

this Court can be prevailed upun to conclude that the decision

in the Cuyahoga County case is incorrect and will make a

different ruling so that the inatter can be eventually taken to

the Supreme Court for final determination to be made as to

what the actual law is, in the event that we get that far.

Now, the reason that we claim that there was no malice, no

libel published, is because there was no claim that the defend-

ant conducted any gambling act.

I won't belabor the point, the Court has the citation of a

Pennsylvania case in the brief that has been submitted, and

that involved the allegation that slot machines were on the

premises, and no claim was made that the plaintiff in that case

was involved in slot machine activities, and the Court said that

there was a fair and accurate representation from the stand-

point of a synopsis of that information applied by governmental

sources in that case, and the plaintiff was tried and was acquit-

ted of having gambling devices, and the reported publication

was found not to be libelous.

The Court’s attention is invited to ORC 2317.04, which per-

mits publication of synopses of police reports and court re-

ports.

I can only add, Your Honor, that there is absolutely no proof

in this case of any damages, and we respectfully request a

directed verdict in behalf of the defendant.

a * * bal

Mr. BURKHART: Just one comment, Your Hunor. When he

speaks of lack of verification, even if no effort had been made to

verify it, and it turns out the statements were accurate, we

have before us here the search warrant, which indicates that

the Scripps-Howard Company did have accurate imormation

and published an accurate report.

25a

In addition to that, we have a concession by Mr. Comer in

this case that these materials were picked up, and those were

the same materials that were identified in the broadcast, so

even if there is no verification attempt, it would be of no

moment, because everything that was stated by Mr. Schottel-

kotte was 100 percent accurate.

I see no point in talking about exemplary damages. I have

given the Court a case brief, which I am sure you have had an

opportunity to examine.

I respectfully submit, Your Honor, that there is no evidence

here that would afford any basis for recovery of compensatory

damages, and for that reason we believe that the motion is well

taken.

THE Court: Well, it will be the ruling of the Court that the

plaintiff has failed to make out a case.

The Court would grant your motion for a directed verdict.

26a

APPENDIX G

COUNTY OF HAMILTON

COURT OF COMMON PLEAS

CINCINNATI, OHIO 45202

October 10, 1979

Charles G. Atkins, Esq.

Attorney at Law

1800 First National Bank Bldg.

105 E. 4th St.

Cincinnati, OH 45202

Harry M. Hoffheimer, Esq.

Attorney at Law

900 Tri-State Building

432 Walnut St.

Cincinnati, OH 45202

Re: Embers Supper Club, Inc. v.

Scripps ,oward Broadcasting Co.

Case No. A-726032

Gentlemen:

The Court now rules upon the defendant’s third motion for

summary judgment filed January 10, 1977, which addresses

itself to the plaintiff's second amended complaint filed August

4, 1976.

In deciding this matter the Court has before it an unverified

second amended complaint, an unverified answer to the second

amended complaint, memoranda of both parties on the various

motions for summary judgment filed by the defendant, an

affidavit of Jefferson Hermann, an affidavit of Daniel S. Com-

er, an affidavit of Albert Schottelkotte, answers to in-

terrogatories propounded to plaintiff filed September 4, 1974,

and signed by Daniel S. Comer, deposition of James F. Luma-

nick, and deposition of Albert J. Schottelkotte.

27a

On the state of the record the Court finds there are disputed

issues of fact concerning the issue of negligence and of damages

which cannot be resolved on a motion for summary judgment.

Therefore, the defendants third motion for summary judgment

is denied

This matter will be set on the Court’s calendar for a status

report on October 31, 1979, at 9:00 A.M., at which time an

entry may be presented.

Sincerely,

Robert S. Kraft,

Judge